Minister of Home Affairs and Another v Nyathi In re Nyathi v The Minister of Home Affairs and Another (18124/2010) [2015] ZAGPPHC 685 (21 September 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: 18124/2010

21/9/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

THE MINISTER OF HOME AFFAIRS

First Applicant

THE DIRECTOR GENERAL: DEPARTMENT OF

HOME AFFAIRS

Second Applicant

and

HLEKANI MARIA NYATHI

Respondent

In re:

HLEKANI MARIA NYATHI

Applicant

THE MINISTER OF HOME AFFAIRS

First Respondent

HOME AFFAIRS

Second Respondent

DATE OF HEARING:

21 AUGUST 2015

DATE OF JUDGMENT:

21 SEPTEMBER 2015

JUDGMENT

MANAMELA AJ

Introduction

[1] This application, by the first and second applicants, is for setting aside two orders made by this court in March 2011 and May 2012. Both orders were granted in the absence of the applicants. I listened to arguments by counsel on 21 August 2015 and thereafter reserved judgment. I henceforth conveniently refer to the first applicant as Home Affairs; the second applicant as the Director General and to Home Affairs and the Director General jointly, as the applicants. The respondent will be referred to as such, although in the papers, particularly counsel's heads of argument, she is referred to as the applicant, including in respect of the current application. A brief factual background is necessary to set the scene, so to speak.

Brief factual background

[2] The respondent applied for an identity document (the First ID) with Home Affairs in November 2006.[1] The numbers on a document labelled an “Acknowledgement of receipt' by Home Affairs for the First ID are stated as: […].[2] After waiting for years for the First ID without any luck and despite several trips to the local branch of Home Affairs, the respondent enlisted the assistance of a third party agency.[3] A demand was made to Home Affairs to issue her with an ID document, but in vain.[4]

[3] In March 2010 she launched these proceedings against the applicants. She sought an order directing the Director General to process her application for the First ID and issue her with same. The applicants did not oppose[5] the application and default judgment was granted on 11 March 2011. Webster J granted an order in the following terms:

1. THAT the second respondent to process the application of the applicant for the issuing of an identity document as provided for in the Identification Act 68 of 1997 (as amended) within 30 days from date of service of this Order.

2. THAT the second respondent to, within 30 days of compliance with the obligation set out in prayer 1 supra, to issue and/or deliver the identity document mentioned in prayer 1 supra to the applicant.

3. THAT in the alternative to the prayer 2 supra, and in the event that the second respondent fails to deliver and/or process the application for an identity document, that the second respondent to provide reasons for its failure to process and/or deliver the identity document to the applicant.

4. THAT the applicant in the event of such reasons being furnished be allowed to supplement her papers and to claim relief in terms of the Promotion of Administrative Justice Act, 3 of 2000.

5. THAT the second respondent pays the costs of the application on attorney­ and-client scale.”[6]

[4] The court order by Webster J (the Webster judgment) was served on the applicants by the sheriff of this court.[7] When it appeared to the respondent's attorneys that the applicants were not complying with the court order, an application to find the applicants in contempt of the court order was served on 13 March 2012 (the contempt application).[8] The respondent's attorney of record deposed to the founding affidavit in the contempt application. The contempt application too, was not opposed, although, once more, a notice of opposition was filed. The applicants argue that the respondent enrolled the application without serving a notice to that effect. Makgoba J granted an order on 08 May 2012 (the Makgoba judgment).[9] In terms of Makgoba judgment, the court found the Director General to be in contempt of the Webster judgment and imposed a term of imprisonment of 90 days, but suspended it on condition that there is compliance with the Webster judgment within 30 days.

[5] The applicants reacted to the Makgoba judgment and also took steps towards compliance with the Webster judgment.[10] Their activities in this regard included the following. In May 2012 the local branch of Home Affairs sent officials to the respondent's place of residence or her village. According to Home Affairs, the respondent was found and it was established that she registered her birth with only one of her forenames, as “Maria Nyathi''. She also advised them that she had already been issued with an identity document with numbers: […] (the Second ID).[11] The numbers in respect of the Second ID are obviously different from those in the First ID, being […].[12]The Second ID is said to have been issued on 28 April 2011, a month after the Webster judgment,[13] but over a year before the Makgoba judgment.[14] The applicants submit that in terms of Home Affairs' records the First ID was not only issued but “was dispatched from head office on 12th May 2011 and was received at Mhlala on 16th May 2011, where it was collected by the Applicant [read the respondent] on 17th May 2011”.[15] This was confirmed by the respondent during their visit to her village, the submission continues.[16] I find this submission irreconcilable with the essence or theme of the applicants' submissions. The applicants have always maintained that the First ID is invalid.[17] How can they now change tack and admit to issuing and delivering an invalid document to the respondent in compliance with a court order? I shall return later to deal with this aspect.

[6] Besides the relief sought and defences mounted against the granting of such relief, the issue of costs is vigorously contended in this matter. The applicants are not content with a normal costs order should they succeed in setting aside the orders. They also seek punitive costs order against the respondent and a de bonis propriis costs order against her attorneys of record. In their view, such costs orders would be justified in the light of the conduct of the respondent, particularly her attorneys, who are alleged to have acted without a proper mandate. I will deal with the issue of costs towards the end hereof. I immediately turn to the procedural issues in this application. The issue of condonation is foremost in this regard.

Condonation application

[7] The applicants brought their application for rescission of the two judgments in December 2012. This was close to two years after the Webster judgment and seven months after the Makgoba judgment. There was no clear application for condonation, but neither was it clear whether the rescission application is in terms of the rules of this court or the common law.

[8] The respondent also sought condonation for the late delivery of her answering affidavit and the supplementary affidavit. The answering affidavit was served on 14 March 2014.[18] This was over a year after the rescission application was issued and the respondent notified of her intention to oppose it.

[9] The respondent blamed the applicants as dominis litis for dragging their feet in this application and argued that they have also failed to show the existence of good cause. This submission

was repeated by counsel for the respondent when the applicants' counsel accepted that the issue of condonation may be fatal to his clients' application.

[10] However, I granted condonation in the interests of justice as I wanted to fully dispose of the matter on the merits rather than on procedural grounds.[19] This is not to underrate the importance of an application for condonation and disregard of the rules of court. I found solace in this regard from the fact that there was an explanation in an affidavit filed by applicants on 22 June 2012 deposed to by a Mr Courtenay Champion, a Chief Administration Clerk employed by Home Affairs in its Identity Documents Division.[20] The respondent also explained the causes of her delay in filing her papers.

[11] Ultimately, both parties, in my view, benefitted from the aforesaid exercise of discretion by the court.

Grounds for rescission of the court orders

[12] Although, I have already indicated a contradiction in this regard,[21] it is the applicants' submission that the First ID is “not valid' in terms of the records of Home Affairs.[22] I will return to this a little later.

[13] The applicants explain the reason why they did not follow up their notice of opposition with delivery of an opposing affidavit as follows. The main application was one of many issued simultaneously by the respondent's attorneys of record during March 2010 against Home Affairs. There was a delay in obtaining an investigation report due to the high volume of similar applications countrywide.[23] The respondent did not serve a notice of set down of the main application, despite the applicants' delivery of a notice of intention to oppose the main application.[24]

[14] It is also submitted that the Director General or even Home Affairs was not in contempt of the Webster judgment as the respondent was already in possession of the First ID issued on 21 January 2011 (i.e. the First ID).[25] The applicants also submit that in terms of their investigation conducted by Home Affairs officials at the respondent's village, there is no “Hlekani Maria Nyathi”, but just “Maria Nyathi” born in 1968 and not 1967.[26] This is, of course, the origin of the contradictory submissions that the First ID is “not valid”, referred to above.[27]

[15] The applicants further submit that, in terms of their records, the Second ID was collected by the respondent on 17 May 2011. They add that, the respondent confirmed this during the visit to her village by Home Affairs, and so did her brother, a certain Mr. Thomas Nyathi.

[16] Regarding the challenge on the respondent's attorneys' mandate, the following is submitted. It was established during the visit by Home Affairs' officials to the respondent that she “had not had contact with her attorneys”, but only third parties.[28] The attorneys had despite requests from Home Affairs officials and the applicants' attorneys of record failed to “produce the respondent”. The essence of these submissions is that the respondent may be a fiction of the respondent's attorneys' imagination. Therefore, there is no attorney-and-client relationship between the respondent and her attorneys of record.[29] This is confirmed by the lack of contact when the contempt proceedings were launched, the submission goes. The attorneys launched these proceedings on their own unaware that the respondent has already been issued with the Second ID. This is indicative of lack of bona fides on the part of the respondent's attorneys, it is submitted. The attorneys are accused of “speculative litigation in hope that they would secure costs ...against the state”.[30] I view the latter allegations to be of a very serious nature, especially when regard is had that they are made against officers of this court. I hasten to point out that no proof has been proffered in this regard by the applicants, except for the sheer conjecture.

[17] As already evident from above, the respondent is opposing this application. One of the grounds of opposition is that no ID has been issued to her reflecting her correct and full names. The applicants, in what appears to be either an olive branch or a tactic of litigation, offered that they are willing to entertain the respondent's complaints, but they require her to be “produced”. This submission was incessantly made in both written and oral submissions on behalf of the applicants.[31] I cannot help but wonder why the respondent has to be produced when the applicants are on record that they know where she stays; spoke to her and her brother and that she has received her 10.[32] With respect, the applicants appear to be blowing hot and cold over the issue and this is really not helpful to the court or the respondent.

[18] It is generally submitted that the Webster judgment was erroneously granted; the court was misled and the two orders were obtained by fraud.[33] However, these serious allegations could barely be sustained by the material in the applicants' papers. I will nevertheless proceed to review the respondent's grounds of opposition.

Opposition to the rescission

[19] The respondent's main contention is that the applicants would like to rescind orders they have already complied with. In this regard the respondent refers to the affidavit by Mr Champion referred to above (the Champion affidavit).[34] The Champion affidavit was in response to paragraph 2 of the Makgoba judgment, read with paragraph 3 of the Webster judgment. It bears a telling title, namely “reasons for its failure to process and/or deliver the identity document to the applicant.”[35]

[20] Regarding the contempt application, it is also submitted that the Champion affidavit was delivered after a period of one year and one month of the applicants having been in contempt of the Webster judgment. It was only furnished due to the Makgoba judgment in the contempt application and therefore the bringing of the contempt application was justified.

[21] The respondent and her attorneys deny the fraud allegations and the accusations about her being a phantom client and the absence of attorney-and-client relationship with her attorneys. It is submitted that the lack of contact was due to the respondent having taken up employment far from her home.

[22] In the main, it is contended that the applicants have not furnished the respondent with a proper ID document. The respondent admits collecting the Second ID, but she persists that the information therein is not hers or is incorrect. It is submitted in this regard that, her names are as cited in these proceedings and her correct ID number is as in the First ID. The respondent is considering to pursue remedies under the Promotion of Just Administrative Action Act 3 of 2000 in order to protect her rights.[36]

[23] In sum, it is submitted that the applicants are not acting bona fide in bringing this rescission application and they have actually failed to meet the requirements for rescission of the impugned orders or judgments.

Applicable legal principles and the above facts or submissions

[24] I have just mentioned above that the applicants say the Webster judgment have been erroneously granted, due to fraud and the court being misled by the respondents and her attorneys.[37] This submission seems to allude to the provisions of Rule 42(1)(a) of the Uniform Rules of this court. However, no facts are given to which existed at the time of the Webster judgment, which if known to the court then, would have led it to decide otherwise. I have already expressed a view that the issuing of the First ID cannot be considered a fact with any probative value, as on the applicants' version it is invalid and the respondent deny receipt or possession of it.[38] In any way, it is denied by the respondent that Rule 42(1)(a) is applicable in this matter. I agree with this contention. This means the application is either in terms of Rule 31 or the common law.

[25] Under the common law or Rule 31 for the applicants to be successful they have to show good cause. Showing good cause means that they must give a reasonable explanation for their default; show that rescission was brought bona fide; that they have a bona fide defence, including a prima facie case on the merits. The respondent submits that the applicants have not met this requirement and that this court may only interfere with the exercise of a discretionary power of the court that granted the impugned orders only if that power has not been properly exercised.[39]

[26] It is further submitted that there is an indication of the lack of bona fides of the side of the applicants as this application was brought after the impugned orders have already been complied with by the applicants. I consider this issue to be decisive of the matter and I devote my attention to it, next.

Rescission of a judgment or order already complied with

[27] The Champion affidavit[40] is stated as being filed “IN TERMS OF PARAGRAPH 2 OF ORDER DATED 9TH MAY 2012”.[41] This is the Makgoba judgment. Paragraph 2 of the Makgoba judgment reads as follows:

“THAT the second Respondent is sentenced to imprisonment for a period of 90 days, suspended on condition that the second Respondent complies with the court order dated 11 March 2011 [i.e. the Webster judgment] within a period of 30 days from date of service of this order.”[42]

[28] It is submitted in this regard that the applicants complied with the orders sought to be rescinded in order to avoid the imprisonment of the Director General. Therefore, the applicants have acquiesced in the respondent's claims and cannot seek to undo all that through rescission. Counsel for the respondent referred to the decision in Meiklereid v Bank of Africa, Ltd 1905 TS 749. The case may have been about a plaintiff who had presented for payment a taxed bill of costs for

payment and thereafter lodged an appeal in the same matter, but the authoritative value thereof hasn’t faded with the years. Innes CJ said the following:

“It hardly seems to me a case for the application of the doctrine of estoppel; it is rather a question of acquiescence. Voet (49, 1, 2) in dealing with the question says any party may appeal who thinks he has been prejudiced by a judgment, unless he has expressly or tacitly approved of or acquiesced in the judgment. And he gives, as an instance where no appeal is allowed, the case of a man who has asked for time for payment of a judgment.”[43]

[29] The concept or doctrine of acquiescence may be well known in the field of trade marks or family law but, Ifind it very useful and applicable in this matter. In The Law of South Africa[44] the concept is distinguished from estoppel as follows:

“A person who has acted upon a will or acquiesced in it may be estopped from thereafter attacking its validity. It has been said that this is “a case of election”: the beneficiary has the choice either to attack the validity of the will or to accept the provisions of the will and to act in accordance with them. The lapse of time between the testator's death and the date of the application to set the will aside may afford proof of acquiescence but is not conclusive where a reasonable and satisfactory explanation is forthcoming. Since it is a case of election, the court may grant relief to a beneficiary who has acted upon a will or acquiesced in it under an excusable error or in ignorance of the facts or of his or her legal rights.”

[30] In my judgment, rescission is therefore unavailable to the applicants. The applicants have already complied with the orders they seek to set aside and there was not even a reservation of rights in this regard. This is not to say that such reservation would have been found meritorious.

Conclusion

[31] In my view, the rescission application is actually saddled with more than procedural problems. As indicated above, I have found the applicants' defences to the claim in the main application rather mercurial. In the one submission they cannot issue the respondent

with the correct ID because the numbers she provided are not valid in terms of their records, whereas in the other such ID was delivered to the respondent invalid- numbers-and-all even before the order by my brother Webster J was granted. All these cannot sustain the relief sought by the applicants and the application would thus fail.

Costs

[32] It is submitted on behalf of the respondent that the applicants conduct in their disregard of applicable rules of this court must be visited upon with a punitive costs order. In my view, this was aimed more at thwarting off the punitive costs orders suggested by the applicants. In any case, I do not think that the applicants, although they appeared overzealous in their approach, were mala fide in the conduct of this litigation or that they carried themselves in such a way that I need to express my disapproval with a punitive

costs order. Therefore, I will order costs only on a party and party scale.

Order

[33] In the premises, I make the following order:

a) the application for rescission or the setting aside of orders issued by this court on 11 March 2011 and 08 May 2012 against the first and second applicants is dismissed, and

b) the first and second applicants are ordered to pay the costs of this application on a party and party scale, the one paying the other to be absolved.

___________________________

K.LA.M MANAMELA

Acting Judge of the High Court

APPEARANCES

For the Plaintiff: Adv. T Madima SC

Instructed by: Ngoepe Attorneys, Pretoria

For the Defendant: Adv. JF Griesel

Instructed by: Markus Saayman Inc, Nelspruit

c/o Van Zyl Le Roux Inc, Pretoria

[1] See para 2.2.2 of the founding affidavit on indexed pp 7-8; annexure "A" (i.e. Acknowledgement of receipt) to the founding

affidavit in the respondent main application (the main application) on indexed p 38.

[2] Ibid.

[3] An entity called G & Y Solution. See para 2.1 of the founding affidavit on indexed p 7; annexure "B" (letter of demand) to the main application on indexed p 39.

[4] See para 12 main application on indexed p 36; letter of demand on indexed p 39.

[5] The applicants filed a notice of intention to oppose, but did not file an answering affidavit. See indexed pp 176·177

[6] See annexure "CCl" to the founding affidavit on indexed p 23.

[7] See annexures "C" and "D" to the founding affidavit on indexed pp 48-49.

[8] 'See annexure "CC2" to the founding affidavit on indexed pp24-49.

[9] 'See annexure "CC3" to the founding affidavit on indexed p 50.

[10] See paras 7-10 of the founding affidavit on indexed pp 12- 17.

[11] See annexure “MM9” on indexed p 208.

[12] See para [2] above.

[13] See para [3] above.

[14] See para [4] above.

[15] I added italics to the quotation. See para 7.6 of the founding affidavit on indexed p 14; annexure "CC7" on indexed p 54.

[16] See paras 7-8 of the founding affidavit on indexed pp 12- 16.

[17] See paras [5] above and [14] below.

[18] See the opposing affidavit on indexed pp 104-218.

[19] See generally Cilliers AC, Loots C and Nel HC Herbstein and van Winsen The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa 5th edition (Juta Cape Town 2009) at pp 723-724.

[20] See annexure "CC8" to the founding affidavit on indexed pp 55-71 (without annexures)

[21] See para [5] above.

[22] See para 2.2.3 of the founding affidavit on indexed p 8; annexure "C" main application on indexed p 40.

[23] See para 2.3 of the founding affidavit on indexed p 9.

[24] See para 2.4 of the founding affidavit on indexed p 9.

[25] See para [12] above.

[26] See para 1.5 of the applicants' heads of argument.

[27] See paras [5] and [12] above.

[28] See para 7.7 of the founding affidavit on indexed p 15.

[29] See para 9 of the founding affidavit on indexed p 16.

[30] See para 11.3 of the founding affidavit on Indexed p 18.

[31] See para 12.1 of the founding affidavit on indexed p 19.

[32] See paras 7.3-7.7 of the founding affidavit on indexed pp 13-15.

[33] See para 4.2 of the applicants' heads of argument.

[34] See para [10] above.

[35] See annexure “CCS” to the founding affidavit on indexed pp 55-71 (without annexures).

[36] See para 70 of the respondent's heads of argument.

[37] See para [18] above.

[38] See paras [17] and [22] above.

[39] See Ferris and another v Flrstrand Bank LTD 2014 (3) SA 39 (CC) at paras [23]-[27]; parallel reporting under 2014 (3) BCLR 321 (CC) 329-330 at paras [23]-[27].

[40] See annexure “CC8” to the founding affidavit on Indexed pp 55-71 (without annexures).

[41] Ibid.

[42] See annexure “CC3” on indexed p 50.

[43] See Meiklereld v Bank of Africa Ltd on pp 751-752.

[44] See The Law of South Africa at 286 with footnotes omitted.